Khaleel & Berez (No 2) [2025] FedCFamC2F 1181 | Case summary

Khaleel & Berez (No 2) [2025] FedCFamC2F 1181 | Case summary | Zoe

[33]

The parties prepared a joint chronology of events. What follows is taken largely from the joint chronology, and otherwise from documents tendered or other facts not disputed by the parties.
The father was born in 1976. The mother was born in 1984.
In 2004, the father married his first wife, Ms C ('Ms C'). The father was subsequently granted Australian citizenship and relocated to Australia. Ms C relocated to Australia in 2006. The father was the sponsor of Ms C's visa.
In early 2015, it is alleged that the father committed a prolonged assault against Ms C, including striking her numerous times on her head, face and body. Ms C locked the home and called 000 once the father had left the home to get cigarettes. On his return, the father broke into the home. Ms C hid in the bathroom. The father kicked down the door before proceeding to assault Ms C. Victoria Police ('Police') arrived at the scene and arrested the father. Ms C was visibly frightened and had swelling and bruising to her right cheek. Ms C reported to the Police frequent assaults and threats on a daily basis. Ms C also disclosed that the father had raped her two days prior and that she had been sexually assaulted in the marriage. A SOCIT investigation was conducted. A Family Violence Notice was issued.
The next day, the father was located in the home by the Police in breach of the Family Violence Notice. He was arrested and was remanded in custody. The father admitted to making five phone calls to Ms C and texting her in breach of the Family Violence Notice. The Father was charged with contravening a Family Violence Notice as well as charges of recklessly causing injury, criminal damage, threats to kill and unlawful assault for the events of the previous night.
In early 2015, the father was found guilty without conviction of Unlawful Assault, Intentionally Damaging Property, Contravening a Family Violence Safety Notice, Making a Threat to Kill and Threat to Inflict Serious Injury. The matter was adjourned to early 2016 on the condition that the father continued counselling and completed a Men's Behaviour Change Program.
In mid-2015, the father was convicted of persistently contravening a Family Violence Order. A Community Corrections Order was issued by the Magistrates Court for 12 months which required the father to undergo a mental health assessment and treatment as directed, undertake offending behaviour programs as directed and complete a Men's Behaviour Change program.
In mid-2015, the father appealed his conviction of mid-2015 in the County Court of Melbourne. Police records indicate, and the father ultimately confirmed in the witness box, that he abandoned the appeal.
In November 2015, the father completed a Men's Life Skills Group Program with D Organisation.
In mid-2016, a final intervention order protecting Ms C against the father was made. The order expires in late 2060.
In mid-2016, the father and Ms C divorced.
Some two months later in 2016, the father met and married the mother in Country B. The marriage was arranged.
In around September or October 2016, the father returned to Australia. The mother remained living in Country B.
In late 2016, the mother made an application for a subclass 309 (permanent residency/partner) visa. The father was the sponsor.
Between September 2016 and February 2018, the mother lived in Country B while the father lived in Australia.
In 2017, X was born by caesarean section. In 2017, the father arrived in Country B to meet X. In or around July or August 2017, the father returned to Australia.
In late 2017, X was granted Australian Citizenship by descent by joint application of the parties.
In early 2018, the mother was granted a provisional subclass 309 visa. Subsequently, in February 2018, the mother and X along with the father's sister (Ms E) arrived in Australia to live with the father. Ms E subsequently returned to Country B at the end of May 2018.
In June 2018, the mother and X relocated to Country B following alleged family violence committed by the father. The father remained in Australia.
In 2018, Y was born in Country B. In 2018, the father posted a social media blessing confirming the birth of his son.
In December 2018, the mother deposed the father wrote to her confirming the end of the relationship stating that 'our relationship is ended. Look after the children. When your parents return your mobile, then we will have a chat. Ha, ha, ha'. The father did not contest this evidence.
In the period of January to March 2020, the father visited his family in Country B. He did not see the mother or the children. The reason for this is disputed.
In February 2020, an application brought by the mother in Country B for a Guardianship Certificate was dismissed due to non-prosecution. In April 2020, the mother initiated a second set of legal proceedings against the father in Country B in relation to child support.
In early 2020, the mother's application for a visa for Y was rejected.
In December 2021, the father travelled to Country B.
In January 2022, the father met the children in Country B at a Court for approximately one hour. It was first time he had seen the children in three years. Subsequently, existing family law proceedings in Country B were withdrawn by the parties on the basis of them working towards a reconciliation.
In February 2022, father spent time with the children on four occasions for about one hour each with the mother in attendance at each visit. The father subsequently returned to Australia in February 2022.
Between February 2022 and April 2023, the mother facilitated video calls between the father and the children. The evidence that emerged during the proceeding is that the calls were initially regular but declined in frequency over time.
In mid-2022, the mother was granted permanent residency in Australia. The mother subsequently travelled to Australia with X, and left Y in the care of her family. In July 2022, the mother and X returned to Country B.
In September 2022, the father sent technology gadgets, educational material and gifts to the children.
In late 2022, Y's visa application was rejected.
In December 2022, the mother travelled to Australia with X. Y remained in Country B in the care of the mother's family.
In early to mid-2023, the father filed multiple cases against the mother's family in Country B. The mother became increasingly stressed because of these proceedings that included allegations that her family had kidnapped Y. These proceedings were ultimately dismissed at a later point in 2023.
In June 2023, the mother returned to Country B with X. She collected Y and took the children to Country F to flee from the father.
In mid-2023, Y was granted Australian Citizenship.
In September 2023, the mother and the children returned from Country B to Australia and commenced residing in Melbourne.
In October 2023, the father ascertained the location of the residence of the mother and the children. He went to their home and waited there for hours. The mother attended the Suburb G Police Station for assistance to apply for an intervention order.
In October 2023, the Police attended the mother's home to complete a welfare check based on multiple telephone calls and reports made by the father.
In late 2023, the Police made an application for a family violence intervention order against the father for the protection of the mother and the children.
In late 2023, an interim family violence intervention order, which is a full no contact order, was made against the father.
In early 2024, the Police withdrew their application for a family violence intervention order. The mother subsequently made her own application for a family violence order. A further interim family violence intervention order was made protecting the mother and children against the father.[1]
In early 2024, the father appealed to the County Court of Victoria seeking costs against the Police. The father's application was ultimately struck out.
In mid-2024, a final hearing was held with respect to the mother's application for a family violence intervention order. No order was made, however, some findings of family violence were made against the father.
In 2024, the father married his third wife in Country B.
On 26 March 2025, the father filed court proceedings in the Federal Court of Australia against the Department of Home Affairs ('DHA') and the mother, which among other things, sought an investigation into the granting of Australian Citizenship to Y and compensation from the DHA and the mother for causing him grief and misery.

[34]

The mother and the Independent Children's Lawyer ('ICL') sought orders that the mother have sole responsibility for making decisions about major long-term issues in relation to the children and that the father spend no time with and not communicate with the children. They also sought orders that the mother be permitted to remove the children from the Commonwealth irrespective of the father's consent, that the mother be able to apply for passports for the children, that the father be restrained from removing the children from Australia and further that he be restrained from, among other things, harassing, molesting, intimidating and stalking the mother and the children, upon the expiry of any family violence protection order under State or Territory law.
The father sought orders that the parents share decision-making in respect of major long-term issues in relation to the children, that the children live with the mother and that the children commence spending time with him. The father proposed that for a period of six months, the children spend two hours every alternate weekend of supervised time with him as well as a weekly video call, with the supervised time to occur before Country B speaking supervisor and if that is not possible, the father be limited to communicating with the children in English. Thereafter, the father proposed that for a further period of six months he be permitted to spend four hours every alternate Sunday with the children unsupervised, with a video call on the non-contact Sunday. Thereafter, he proposed that he spend time with the children for four hours every alternate Saturday and Sunday from 10.00 am until 2.00 pm with a weekly video call on every non-contact Sunday. He also sought a number of other orders including that all changeovers be supervised, that he be entitled to receive school reports and newsletters, that he be entitled to attend parent teacher interviews and that the children be placed on the airport watch list. He also proposed various restraints in respect of himself and the mother.
The mother relied on her Further Amended Response dated 31 January 2025, her trial affidavit sworn 31 January 2025, the affidavit of Ms H (Psychologist) affirmed 25 February 2025 and the affidavit of Mr J (Clinical Psychologist) affirmed 10 October 2024. Ms H and the mother were cross-examined. Mr J's evidence was unchallenged by cross-examination. The mother also relied on various documents tendered during the preceding. The father relied on his Third Amended Initiating Application dated 20 January 2025, his affidavit affirmed 17 June 2024 and the affidavit of Dr K (Consultant Clinical Psychologist) affirmed 21 May 2025. The ICL relied on her Case Outline, tendered various documents into evidence and relied on the Child Impact Report of Ms L dated 29 May 2024.

[36]

In exercising jurisdiction under the Family Law Act 1975 (Cth) ('Act'), the Court must have regard to the matters set out in section 43 of the Act, including, inter alia, the need to ensure protection from family violence (section 43(1)(ca)). Further, section 60B of the Act sets out the objects of Part VII of the Act which are, inter alia, to ensure that the best interests of the children are met, including by ensuring their safety. Section 60CA of the Act provides that I must regard the best interests of the children as the paramount consideration.
Section 60CC of the Act sets out the matters the Court must consider in determining what is in a child's best interests. There are general considerations set out in subsection (2)(a)-(f) and considerations that apply to Aboriginal and Torres Strait Islander children in subsection (3).
Subsection 60CC(2A) requires the Court to include consideration of any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child) and any family violence order that applies or has applied to the child or a member of the child's family. Section 60CG(1) of the Act requires the Court in considering what order to make, to the extent that it is possible to do so consistently with the child's best interests being the paramount consideration, to ensure that the order is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence.
The term 'family violence' is defined in section 4AB(1) of the Act as meaning 'violent, threatening or other behaviour by a person that coerces or controls a member of the person's family...or causes the family member to be fearful'. Subsection (2) of section 4AB sets out examples of behaviour that may constitute family violence.
Most recently in Abramsson & Abramsson (No 2) [2025] FedCFamC1A 86, a Full Court considered inter alia, allegations of family violence and the approach to fact finding. At [31]-[34], the Full Court endorsed comments of McClelland DCJ and Austin and Williams JJ and noted that a trial judge is not required to make findings in respect of every allegation that is made at trial. The Full Court also noted, however, at [34] that whether there is a need for a trial judge to proceed to make findings of family violence will be informed by a consideration of the circumstances in each case. At [35], the Full Court endorsed the guidance provided in Pickford & Pickford (2024) 70 Fam LR 85; [2024] FedCFamC1A 249 by Aldridge and Carew JJ at [36]-[39] which McClelland J agreed in relation to the approach to be taken to fact finding.
This is a case that raises the question of whether the father poses an 'unacceptable risk'. In Isles & Nelissen (2022) 65 Fam LR 288; [2022] FedCFamC1A 97 at [50]- [51], a five-member bench of the Full Court endorsed as a correct statement of the law, the following statements of Austin J in Fitzwater v Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251 at [138]-[142].

[37]

[138] The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter v Potter (2007) 37 Fam LR 208; (2007) FLC 93-326; [2007] FamCA 350 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.

[139] Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children's sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.

[140] It cannot be correct that the unacceptable risk of a child's sufferance of harm through future sexual abuse can only ever be established if it is proven as a fact, on the balance of probabilities, that the child (or another) has already been sexually abused in the past. Depending upon the strength of the evidence placed before the court, the possibility of past sexual abuse may of itself be sufficient to establish the chance of future sexual abuse. That has long been accepted as true (Nikolakis v Nikolakis [2010] FamCAFC 52 at [41], [44], [49]-[53], [96]; Partington (aka Bande) v Cade (No 2) (2009) 42 Fam LR 401; (2009) FLC 93-422; [2009] FamCAFC 230 at [56]-[61]; Johnson v Page [2007] FamCA 1235; (2007) FLC 93-344 at 81,888-9; [2007] FamCA 1235 at [68], [71], [76], [77]).

[141] Indeed, that was exactly the factual scenario in M v M. There, the trial judge concluded it was possible the father had sexually abused the subject child, but could not make a positive finding it had occurred on the balance of probabilities, and therefore discharged the "access" order (as it was then described) to eliminate the future risk of the child being sexually abused by the father. The father's appeal was dismissed because the possibility of the child's past sexual abuse was sufficient, on the evidence adduced in that case, to establish the unacceptably high risk of the child's future sexual abuse.

[142] As was recognised by Hale LJ (as her Ladyship then was) in Re C and B (children) (care order: future harm) [2001] 1 Fam Law R 611 at [28], in child-related proceedings, a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not. It could hardly be otherwise, because no prudent adult would willingly expose a child to the risk of sexual abuse when there is an unacceptably high chance of its occurrence, even though the chance is not proven by the evidence to be probable. Requiring the proof of any possible future child abuse as a probability would pervert the law as settled by the High Court in M v M and Malec.

[38]

Division 2 of Part VII of the Act deals with parental responsibility. Section 61B of the Act defines 'parental responsibility' in relation to a child as meaning 'all the duties, powers, responsibilities and authority which, by law, parents have in relation to children'.
Section 61C(1) of the Act provides that each of the parents of a child who is not 18 has parental responsibility for the child. Subsection 61C(3) provides that subsection (1) has effect subject to any order of a Court.
Section 61D deals with parenting orders and parental responsibility. Section 61D(1) of the Act provides that a parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on the person duties, powers, responsibilities and authority in relation to the child. Subsection (2) provides that a parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent, if any, expressly provided for in the order, or necessary to give effect to the order. Subsection (3) provides that a parenting order that deals with the allocation of responsibility for making decisions about major long-term issues in relation to the child may provide for joint or sole decision-making in relation to all or specified major long-term issues.
The term 'major long-term issues' is defined in section 4 of the Act.
While section 61D(3) of the Act permits a Court to make an order for joint or sole decision-making in relation to all or specified major long-term issues, the Act does not expressly set out the matters the Court is required to take account of in determining whether a person should be given sole decision-making in relation to all or specified major long-term issues. While I was not addressed on this issue, absent any express provision in the Act, whether a person or persons are to be awarded sole or joint decision-making is a matter to be determined, having regard to the paramount principle of what is in the best interests of the child (section 60CA of the Act).

[42]

There were difficulties with the evidence given by the father and the mother. Both failed to answer questions directly. Both were at times unreliable historians. At one time or another during the course of the trial, I had reason to doubt the veracity of what I was being told by each of them.
The mother exhibited distress in the witness box. She was emotional and very often teary. The mother's presentation before me was consistent with her presentation before others who have seen her, including Mr J who described her as 'tearful' when she spoke to him, Ms H who described her as 'crying sobbing, weeping' and Ms L who described her as 'visibly distressed'.
The mother gave an account of very serious child abuse inflicted upon X by the father. She became, as might be expected of anyone who had observed such alleged abuse, highly distressed when she was giving this evidence. Her evidence was given in an apparently compelling manner. Be that as it may, the mother's accounts of some of the events she says occurred simply cannot be accepted. It is difficult to reconcile the mother's apparent distress and teariness when giving these accounts when the fact is they could never have occurred as described.
The mother's apparent fragility is also at odds with evidence given by Ms H. Observations of the mother by myself and others including Ms H would suggest that the mother's well-being is at serious risk if she is required to come into contact with father. Yet Ms H suggested the mother is strong enough to handle contact with the father if ordered by the Court.
The High Court has noted that 'an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour': Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [30] citing Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The Palitana) (1924) 20 LI L Rep 140 at 152 (Atkin LJ). That observation applies to the evidence of the mother. The mother's demeanour is an unreliable guide in assessing the veracity of her evidence.
The father was an unimpressive witness. Aspects of his evidence were not plausible, such as his inability to recall what he earned. Other aspects of his evidence were plainly wrong - he told the Court from the witness box that he told Dr K about his criminal record and conviction, however, it became clear Dr K was not apprised of the extent of the father's criminal record or convictions.
The father was combative. Many times, he argued with the questioner. He had to be reminded by me on more than five occasions to answer the question and on one occasion, I had to adjourn because he was unable to stop interjecting or talking over the top of either me or the questioner. His conduct in the witness box left me with the distinct impression that he is a person who is argumentative by nature, difficult to speak with when confronted with a different point of view, and unable to control himself. His conduct also left me with the impression that he sought to avoid answering questions that might be damaging to his case, for example, his reluctance to speak about the alleged family violence he had perpetrated on Ms C, or provide details or clear answers to the proceedings in the Federal Court he has recently commenced against the mother.
Throughout his time in the witness box, the father stood by his assessment of the mother as a 'liar'. His description of the mother as a liar (among other things) was seized upon by both the mother and the ICL as evidence of his denigration of the mother. Labelling someone as a 'liar' is derogatory, however, the father's view that the mother is a 'liar' is not a matter I would hold against him in the context of this proceeding. He has been the subject of very serious allegations of child abuse levelled against him by the mother. The Court has found the mother's accounts of that child abuse to be implausible and could not have occurred as she deposed. The context makes it understandable that the father would regard the mother as being a liar. What cannot be overlooked, however, are the other descriptors he attaches to the mother. Among other things, he referred to her as 'cruel', 'cunning', 'controlling', a 'fraudster', 'unstable', 'malicious' and 'volatile'. He also described her as using 'trickery' and a person who plays the 'woman card'. It is apparent the father has little regard for the mother, and his attitude toward her tended to permeate his evidence in the witness box. While it is understandable the father would strongly call out the falsities in the mother's evidence, the explicitness and openness of his other criticisms of the mother in open Court was surprising. Given his preparedness to explicitly criticise the mother in open Court, I consider it likely that he would treat the mother in a derogatory manner in private.

[45]

The submission by the counsel for the mother that this Court should take into account the father's criminal and family violence history with Ms C was opposed by counsel for the father. The father submitted that section 60CC(2A) of the Act does not require consideration of historical family violence 'committed some 10 years ago' against 'other people'. He submitted that section 60CC(2A) was concerned only with the parent and the child of the proceeding.
The father's submission is rejected. Section 60CC(2A)(b) requires the Court to consider any family violence order that applies or has applied to the child or a member of the child's family. The term 'family violence order' is defined in section 4 of the Act. The father is a member of the child's family. The family violence orders against the father arising from his conduct toward Ms C must be considered.
Section 60CC(2A)(a) requires the Court to relevantly consider any history of family violence 'involving the child or a person caring for the child'. The father is not, and has not for some time (if at all), cared for the children. Under his proposal, he wants to care for the children. There is question as to what is meant, and who is covered by the phrase, 'a person caring for the child' in section 60CC(2A). Must a person be actively caring for the child in order for the provision to be engaged? Does the provision extend to persons who have had historical care of the child but do not have current care of the child? Is the provision engaged when a person proposes to care for a child, but does not have current care of a child? I was not addressed in any detail on these issues pertaining to the construction of section 60CC(2A)(a).
The starting position is to consider the words of the Act. The most prominent feature of Part VII of the Act is that found in section 60CA. The best interests of the child are the paramount consideration when making parenting orders.
There is then section 60CC of the Act which requires the Court to take certain matters into account in determining what is in a child's best interests. Section 60CC(2) requires the Court to consider 'what arrangements would promote the safety...of the child'. The word 'would' is significant. It requires the Court to assess risk and consider arrangements that promote safety in the future. In any risk assessment, the past conduct of a party is relevant and is to be considered and weighed in assessing, inter alia, the risk of future threats or violence.
Section 60CC(2A) then mandates certain matters the Court must consider when applying section 60CC(2)(a). While it is appropriate to focus on the words and meaning of section 60CC(2A), it is equally important to observe that this subsection is not exhaustive of the matters the Court is required to consider under section 60CC(2)(a). The Court is at liberty to consider other matters that are relevant, and which may include, a history of violence by a party toward another.
There are then the extrinsic materials relating to the words in section 60CC(2A). Paragraph [34] of the Supplementary Explanatory Memorandum of the Family Law Amendment Bill 2023 ('SEM') and the Australian Government response to recommendation 1 of the Senate Legal and Constitutional Affairs Legislation Committee Report on the Family Law Amendment Bill 2023 dated 24 August 2023 tend to support a broader construction of the provision than what the father contended. Paragraph [34] of the SEM relevantly says the Court is to consider any history of family violence involving a person who 'was caring for the child', and also makes clear that the objective of these references 'is to make the relevance of past family violence, abuse and neglect in determining future parenting arrangements clear to all users of the Family Law Act'. Further, Recommendation 1 of the Senate Legal and Constitutional Affairs Legislation Committee Report recommended the Government amend the Bill to 'include a history of family violence, abuse and neglect as a general consideration in determining what is in the child's best interest'.
In my view, the phrase 'a person caring for the child' must include a person in the position of the father in this matter. The father did not have care of any child at the time he engaged in family violence against Ms C. He has, however, had parental responsibility for X, and X was in his care (along with the mother) and living in his home in early 2018. While he has not had recent care of the children, he comes to this Court now seeking orders to ultimately spend time with and care for the children. The Court must engage with the terms of section 60CC(2)(a) and assess risk to then frame orders that would promote the safety of the child. To read the section in the way contended for by the father is not only inconsistent with the words and meaning of section 60CC, but would also produce perverse outcomes, and potentially outcomes inconsistent with arrangements that promote the safety of the child when considering the child's future living and care arrangements.
The father's history with Ms C and his consequent history with the criminal justice system is recorded earlier in these reasons.
The findings of guilt made against the father for unlawful assault, intentionally damaging property, contravening a Family Violence Safety Notice, Making a Threat to Kill and a Threat to Serious Injury, are serious.
It is of significance that the father was found guilty and convicted of persistently contravening a family violence order. Section 125A of the Family Violence Protection Act 2008 (Vic) defines persistent contravention as committing a breach or contravention of a family violence intervention order on at least two other occasions within a period of 28 days immediately preceding the first breach or contravention.
LEAP records from the Police disclose that:

[47]

In his affidavit, the father claimed not to be dismissive of his involvement in the criminal justice system but stated that he did not wish to discuss this 'dark picture' of his life. He claimed not to be aware of the severity of the intervention orders and in the witness box, claimed that because 'there was no relationship left [with Ms C]...it was just a piece of paper' for him. In both his affidavit and in the witness box, he claimed his contact with Ms C in breach of intervention orders arose from his attempt to reconcile with her. In the witness box, generally on this topic, he was not forthcoming about what had occurred, challenged the relevance of this past conduct toward Ms C, and was both argumentative and evasive.
The father minimised his conduct toward Ms C. Whilst the father admitted to the bare facts of the orders and findings of guilt against him, at no point in his affidavit or in the witness box did he acknowledge the seriousness of his conduct and the findings of guilt made against him or their potential impact on Ms C. In fact, to the contrary, the father blames and continues to blame Ms C for what occurred. The father blames Ms C in his affidavit for taking his 'reconciliation efforts' to the Police. He did the same thing in the witness box. He continued to do so after his marriage to Ms C had ended. The father wrote two letters to the Department of Immigration and Border Protection on 17 November 2016 and 26 March 2017, apparently in support of the mother's application for her visa. In those letters, he places the blame for both the breakdown of his relationship with Ms C and the 'reasons for his conviction' squarely at the feet of Ms C and her family. Moreover, and unbelievably given the evidence before me, he describes the events that occurred between Ms C and himself in early 2015 as 'a small verbal argument' before stating that 'Police was issuing those Intervention Orders like hot cakes in all matters of husband and wife family issues'.
The father has a history of violence and threats toward his ex-partner. These are not idle or minor matters, but serious and significant ones. The father displayed no understanding of the effects of his conduct or indeed that his conduct was wrong. His description of the events of early 2015 as a small verbal argument does him little credit and shows a limited understanding of family violence and its effects. The father's description of the Police issuing intervention orders like 'hot cakes' downplays the seriousness of the family violence that was reported against him, the subsequent guilty findings made against him and provides an insight into the father's understanding of (or more accurately lack thereof) family violence matters. The father's account of all of this is to portray himself as the victim and not accept any responsibility for his actions. The father's view of himself as a victim, his inability to acknowledge the seriousness of his conduct toward another person, and his apparent view that his violence was justified by the conduct of Ms C, are views and attitudes that he plainly carried into his relationship with the mother and views and attitudes he still holds.

[51]

In her affidavit the mother says that when X was 10 or 11 months old, the father laid him on the floor, so that he was lying flat and stood on X's shoulders with both of his feet.
In the witness box, I asked the mother to demonstrate, through use of objects that were close at hand, what she observed and exactly where the father's feet were placed, including if any part of his feet including his heels were on the floor (given she claimed in the affidavit that the father's feet were placed only on X's shoulders). The mother stated that the father placed both feet and all of his weight on X's body, which, allowing for the size differential between them, would have seen the father's feet on the shoulders and most likely the chest of X. She claims to have seen this from a distance in excess of five or six metres away. The mother said X was 12 months old when this occurred. The mother's account was once again given in a convincing manner.
The account given by the mother in the witness box in respect of the position of the father's feet differs from what she says in her affidavit. It also differs from what she told Police. A LEAP record with a date of mid-2024 (and a report date of late 2023) records the mother telling Police that the father 'placed his feet on the shoulders of...applied pressure without any specific reason'. The mother's evidence as to X's age at the time this incident occurred was also inconsistent. In the witness box, she said it occurred when X was 12 months old, but then said it occurred within one week of the incident above where the father picked X up by his head. Plainly, both cannot be true.
In my view, the mother's account is implausible and cannot be accepted. The mother was five to six metres away and it seems unlikely she clearly saw what happened. The mother was questioned as to whether she checked the child for bruises after this incident. She did not. It beggars belief she did not check the child for injuries. She also did not take the child to the doctor or ask the father to take the child to the doctor. There is no evidence of the mother raising this issue or any concern she may have had about the child with any medical professional she saw thereafter. She did not raise the matter with Ms L, however, did raise this with Ms H. It is not plausible X's chest was not crushed, and he sustained no injury at all by the full force of the father's weight upon his small and fragile body.

[58]

The mother alleges that in the period February 2022 to April 2023, the father criticised the children during telephone time they had with him. She says that the father would refer to the children as lazy and would criticise them for sitting down and drawing. She says that over time, the children did not wish to speak to the father and would hide when they could see the father on a video call. The mother says that following these calls, the father would send her messages criticising her for the children's behaviour.
In his affidavit, the father says that the mother, during this period, made various excuses as to why the calls could not proceed or occur. Of the calls that did occur, he says both children used to call him a 'stranger'. Asked in the witness box whether he complained that the children were lazy, the father said he could not recall making those comments.
I observe that the children would have been very young at the time these calls were occurring. X would have been approximately four to five years old. Y would have been approximately three to four years old. Irrespective of the competing version of events of the parties as to what occurred in the calls, the ages of the children suggest they would have been easily distracted and not likely to have paid attention to or to have been engaged with the phone for any reasonable period of time.
I regard it as more likely than not that the father criticised the children during the phone calls and criticised the mother subsequent to the phone calls. The father was openly prepared to criticise the mother in open Court and has a history of abuse toward others. It is not difficult to believe, given the context of the relationship between the parties and what had occurred historically between them, that the father would have criticised the mother and the children for the way in which they engaged (or did not engage) with him during the phone calls. He is oblivious to the effect his behaviour and comments have on others.
During cross-examination, the mother asserted that the father also called the children derogatory names during the video calls. She claimed that the father referred to X as a '...' which is a derogatory term describing someone as weak and pathetic. The mother also claimed that the father referred to Y as '...' which is a derogatory term meaning someone who is small and weak like a mouse. The mother was distressed when giving this evidence, and her evidence on these matters was given compellingly.
I am not persuaded that the father verbally abused the children during his video calls by referring to them as either a '...' or '...'. While the mother in her affidavit goes into some detail as to how the father criticised children during the phone calls, she makes no mention of these specific matters. She did not raise these matters with any other person, including the Police or Ms L.

[63]

The mother makes a number of allegations of physical and sexual abuse against the father. She alleges that the father, inter alia, forcibly dragged her by her arm to a relative's house in Country B. She alleges that he would 'suck on' her during their honeymoon. She also says that when they returned to Australia and whilst the mother was pregnant with Y, the father grabbed her by the arms and shook her until she felt dizzy and that on multiple occasions when returning from a drive to soothe X, he would grab the back of her head and use his open hand to push her forward and force her through the door of their home. These allegations were denied by the father.
The mother also alleged sexual abuse by the father toward her. She alleged that he was forceful and dominating during sex, and that he shaved her genital area against her will. This last allegation was the subject of some attention during cross-examination. In her affidavit, the mother says that when in Australia, the father grabbed her and shaved her genital area against her will. She says that he cut her while she was trying to get away and she eventually developed a lump that ultimately required her to have surgery. The account she gives is to some extent supported by the Police LEAP records in which the mother complained in early 2024 that when she came to live with the father in Australia, the father would pin her down and shave her 'private parts'.
The mother's account above, however, is not consistent with what she said under cross-examination in the witness box. In the witness box, she stated that the incident occurred during their honeymoon in Country N, and that it occurred in the bathroom of a hotel room. The mother stated that she was struggling, but that the father with razor in one hand was nevertheless able to pin her and shave her genitals.
The mother gave a different account of this event to Ms H. Ms H reports the mother telling her that the father used a razor blade on her private parts during their honeymoon when she was trying to stop him, and then again in Australia.
The mother's allegation that the father shaved her genital area while she was struggling is not plausible and I do not accept it. Clear inconsistencies emerged between what the mother said in her affidavit and to the Police, what she said in the witness box, and what she told Ms H. It is also not plausible that the father could pin the mother with one hand and perform the act that he is alleged to have performed in circumstances where the mother says she was struggling. The mother gave no evidence that she was forced or otherwise compelled to remain still out of fear of the father while he performed the act.

[66]

The mother alleges the father took photographs of her when she was naked and asleep. The father denies doing so. The mother did not raise this allegation with any other person. She did not raise it with Ms L, Mr J or Ms H. She did not raise it with the Police. No photograph was ever produced nor called for. I am not satisfied to the requisite standard that the event occurred.
The mother alleges that she relied on the father for all of her financial needs, that she would often run out of money, and that the father would ignore her if she asked about finances. She also says he would often complain about paying for things and get angry. She claims he did not purchase clothes for X and that he used to question her about the number of nappies she was using for X. The father says he sent her money when she was in Country B, and that he paid for things when she was here. It is also the father's evidence that once reconciliation between the parties was on the cards in February 2022, he reached an agreement with the mother that he would pay child maintenance to her if she agreed to let him meet and see his children. It is an agreed fact that the father stopped paying maintenance to the mother in around March 2023 once she ceased telephone contact between the children and the father.
There is nothing in the evidence that suggests the mother was employed or capable of employment from the time she met the father in 2016 until April 2023. This suggests strongly that the mother could not support herself or the children during that period. The mother's inability to support herself and the children is also implicit in the father's decision to pay maintenance to the mother from February 2022 until April 2023 and the father's decision to, among other things, send educational learning materials for the children to the mother between February 2022 and April 2023. It is plain that the father was aware that the mother was reliant on him for financial support. Notwithstanding that awareness on his part, however, he ceased making maintenance payments in April 2023. He says, among other things, that he ceased the payments also because the mother's brother was accessing the funds he was providing.
During cross-examination, the father confirmed that he had access to the mother's Country B bank accounts. How this came to be the case is not clear. The father initially stated in the witness box that it was easy in Country B for a husband to do this. Later, he claimed he had been provided with the bank statement as a result of proceedings he had commenced in Country B.
In my view, the decision by the father to withhold financial support needed to meet living expenses of the mother and the children and his decision to access and check the mother's bank account, are examples of the father seeking to exercise financial control or oversight of the mother.

[73]

The mother commenced two sets of proceedings in Country B. The first, in either June 2019 or February 2020, was an application by the mother to obtain a guardianship certificate. The application was dismissed for non-prosecution. Then, in April 2020, the mother initiated a second set of proceedings for child support. It appears that case was withdrawn when the parties commenced working toward a reconciliation of their relationship in early 2022. None of the relevant documents were placed before the Court and the evidence as to the substance of these proceedings is sparse.
The father commenced four sets of proceedings in Country B. A reading of his affidavit indicates that broadly, these proceedings related to him seeking to locate the children and spend time with them. All four proceedings were dismissed. None of the relevant documents were placed before the Court and the evidence as to the substance of these proceedings is sparse.
In around 2024, the father commenced proceedings in the County Court of Victoria relating to the refusal by the Magistrates' Court of his application for costs against Victoria Police. Plainly, the proceedings are against the State of Victoria, and not the mother.
None of the proceedings to which I have referred above could be said to constitute what the ICL described as 'systems abuse'. Or, to use the language of section 4AB, none of the proceedings to which I have referred above could be characterised as 'other behaviour' of a family member that causes a family member to be fearful. There is insufficient evidence before me about the nature of these proceedings in order for me to characterize them collectively as 'systems abuse' by the father toward the mother. On its face, the proceedings between the parties referred to above appear to be examples of each party seeking to enforce rights they may have had against each other.
There are however, three other sets of proceedings, inquiries or complaints that warrant mention.
In cross-examination, the father confirmed he had made a complaint about the mother to the Federal Investigation Agency of Country B in 2023. The complaint relates to 'falsified details and documents submitted in Country B passport office without my consent'. The father never heard back from the relevant agency after making the complaint.
On 26 March 2025, the father filed an application in the Federal Court of Australia against the DHA and the mother. The relevant Federal Court documents are not in evidence before me. It is not clear on the evidence what cause of action is being pursued, or the specific orders or relief the father seeks from the pursuit of the claim. The father was reluctant to provide any details of this proceeding during cross examination. Ultimately, however, he confirmed that he was pursing the matter because of the grief and misery that has been visited on his life and that he would be seeking an inquiry into the lies of the mother and the 'untruth or the falsified documents that she submitted for all the visa applications for Y - to be looked at it again'. He confirmed the first respondent in the proceeding is the Minister for Immigration, that the second respondent is the mother, and that his claim was for damages against the mother for lies and deceit and for mental and financial suffering he has allegedly endured.
Finally, the father confirmed in cross examination that he had made a complaint against the 'Department' to the Commonwealth Ombudsman. He confirmed these were not complaints about the mother. The nature of the complaints made is unclear, save that the father indicated the complaints were in respect of his 'fundamental human rights' as a father.
The complaint made by the father to the Commonwealth Ombudsman does not constitute 'systems abuse' directed at the mother or attempts to intimidate or control the mother. The mother is not the subject of these complaints. I am concerned, however, about the proceedings he has recently commenced in the Federal Court Australia. The mother is a target in this proceeding. The father was unable to clearly articulate the cause of action he was pursuing. He was unable to articulate any legal right of his that had been infringed. His complaints appear to centre on alleged and unspecified untruthful statements made by the mother in certain unspecified matters relating to the citizenship or visa applications of Y.
The proceeding in the Federal Court of Australia is also of particular concern because it seems to involve, at least in part, allegations relating to the grant of the visas and/or citizenship to Y. I do not understand why the father would seek an enquiry into the circumstances of the grant of visas or citizenship to Y. Even if the father could be confident that the initiation of this proceeding does not jeopardise Y's visa or citizenship (and I do not know how he could be confident given he is not a lawyer), he could not fail to realise the impact this proceeding would have on the mother. She is a recent immigrant, who does not speak English, and is not familiar with the norms of this land, let alone its laws. She is here effectively alone without her immediate family, unemployed, with two young children. She has applied for visas and/or citizenship for Y, which has been granted. The grant of citizenship places Y on an equal footing with that of his brother. Both children enjoy citizenship. Both can reside here, as can the mother.
The father is an educated man. He could not fail to realise that the initiation of a proceeding in the Federal Court will likely confuse and frighten the mother. He could not fail to realise that her involvement in that proceeding will impose a significant burden upon her and distract from her ability to care for the children. He could not fail to realise that the likely consequence of his action is that the mother may fear Y's citizenship or visa and his ability to live in Australia is in jeopardy. Indeed, in the witness box, the mother's evidence was that she understood the case being brought by the father was 'to get rid of the citizenship' of Y.
In my view, and irrespective of the merits of the Federal Court proceeding, the initiation of this proceeding at this time by the father, is nothing more than a crude and ugly action by the father that has instilled fear in the mother and is an attempt to threaten to undermine her settlement in this country with the children and her ability to care for the children. The proceeding has certainly had that effect on the mother, given her understanding of it. The father is deliberately and intentionally inflicting pain and emotional turmoil on largely hapless and vulnerable victims.
I am satisfied that the father has commenced the Federal Court proceeding to intimidate and control the mother and to strike fear into her heart. I am fortified in my view that the father is seeking to control the mother through the prosecution of this proceeding which arises from the grant of citizenship to Y, because this is not the first time the father has sought to interfere in the immigration and citizenship processes of this family. He previously blatantly and deliberately sought to, without authorisation, withdraw the mother's visa application.

[74]

The mother alleges that following her return to Country B in June 2018, members of the father's family threatened to take the children away from her. She alleges that in about August 2022, when speaking to the father by phone and mentioning that internet difficulties may hamper his calls with children, the father sent her a voice message stating 'you have seen the reach I have in [Country B], I can get anything done [Country B]'. The receipt of the message caused fear in her. She says when she returned to Country B in June 2023, she took both children to Country F given that proceedings had been instituted by the father in Country B and the previous threats made to take the children from her. The father denies making any threats to the mother and denies that his family made any threats toward the mother.
The voice message referred to in the paragraph above was called for by the father's counsel. This was then played by the mother on her phone in the witness box and interpreted by the Court interpreter during cross-examination by counsel for the ICL. The message was dated 16 July 2022 at 7.31 pm. Differences in language, the role of translation and cultural differences make it difficult to assess the tone of the message and whether the tone of the message itself is threatening. There is little doubt, however, about the content of the message. In the message, the father states that he wants to see his children, he refers on at least two occasions to the proceedings he has instituted in Country B, and he informs the mother that even in her case he was able to see the children, so she should understand 'how much my reach extends'. The father goes on to say that if he is not allowed to see the children in circumstances where child-support expenses are already given on time, then the mother should 'get ready to suffer the consequences of those actions because I am not happy. I don't like this at all'. In cross examination, the mother confirmed that she understood the father, when referring to his 'reach', was referring to his reach and influence over the courts of Country B, and that she was terrified.
I am satisfied that the voice message from the father dated 16 July 2022 constitutes threatening behaviour. The reference to 'how much my reach extends' is clearly a message to the mother that the father has influence in Country B and can get things done in Country B to the detriment of the mother. The warning to the mother to get ready to suffer the consequences of her actions is clearly threatening and designed to intimidate and cause fear to the mother. I am satisfied that the mother was fearful when she received that message.
I am also satisfied that members of the father's family threatened to remove the children from the mother when the children turned seven years of age. It is unlikely the mother (with two very young children in tow) would flee to Country F from Country B unless she was threatened. If the father was prepared to threaten the mother, I am more than readily prepared to accept members of the father's family threatened her in circumstances where she had fled to Country B.

[76]

The mother alleges that on 29 October 2023, the father came to her residence in Suburb G and tried to enter her home. She deposed that the father tried to enter the front gate but could not open it. Her friends then spoke to the father, and the father then remained outside the property for several hours. She says that she was too scared to go to the police immediately but eventually went at 11.00 pm to report the father's behaviour. She deposed to being very scared to leave the house following the incident.
The father admits to visiting the mother's property on 29 October 2023. He says he became aware of her address after noticing that a new Medicare card had been sent to an address in Suburb G. He admits to attending the property, speaking to the mother's friends, and remaining at the property for some time. He says he attended because he wished to see his children because he was concerned about their welfare in circumstances where he had heard nothing since they fled to Country F. He also admits to asking the Police to conduct a welfare check on the mother and the children.
The mother also gave evidence in the witness box that in early 2025, the father attended a park near the children's school and called out the names of the children. The mother subsequently applied for an intervention order from the Magistrates Court, and an interim intervention order was made in early 2025. The application for the interim intervention order sets out facts (from the mother) consistent with what the mother told the Court. A photograph of the father at the sports ground was tendered into evidence. In the witness box, the father admitted he was at the sports ground and said he just happened to be there because it was close to where he lived. He admitted to calling out the names of the children.
The father had no business being at the sports ground and even if there by accident, should not have sought out the children by calling their names. The father had, by this stage, brought an application in this Court to spend time with and communicate with the children on an interim basis pending trial. That application was heard by Judge Forbes on 26 June 2024. Judge Forbes delivered reasons and made orders on 8 July 2024. Order 13 of the orders of Judge Forbes explicitly provided that the children were to spend no time and have no communication father. The father's attendance at the sports ground and his calling out to the children, is conduct that directly contravenes the order made by Judge Forbes.

[78]

(a) has a history of family violence against his former wife and is guilty of various offences against her. The father was not forthcoming about this history, sought to blame his former wife for his conduct and continues to minimise his conduct toward her;

(b) has no insight into his behaviours and no real appreciation of the impact of his family violence upon others;

(c) is highly critical of and denigrates the mother;

(d) has unreasonably withheld money from the mother that she requires to meet her living expenses at a time when she is entirely dependent upon him;

(e) sought to withdraw the mother's application for a visa to remain in Australia. His actions were plainly an attempt to deny the mother entry into Australia and to keep her in Country B. His action had the potential, at some point, to separate the mother from X, who has Australian citizenship;

(f) has commenced proceedings recently in the Federal Court seeking, inter alia, an inquiry in the circumstances of the grant of visas and citizenship to Y and damages from the mother and DHA. This is a deliberate act of the father that has intimidated the mother, and likely caused her to fear for Y's citizenship and visa status;

(g) and members of his family have threatened the mother that the children will be removed from her causing her to be fearful. The father has also caused the mother to be fearful by boasting of the 'reach' he has in Country B and threatening her that she should get 'ready to suffer the consequences';

(h) has attempted to see the children notwithstanding orders made by this court on 8 July 2024 that he not communicate and not spend time with the children. By doing so, he instilled fear in the mother;

(i) has deliberately continued to refer to Y as 'M' which has caused distress to Y. The father has persisted in this conduct despite being aware of Y being unhappy about it. The distress experienced by Y constitutes a threat to his emotional welfare and health. The father's conduct is also apt to confuse Y, which constitutes a further risk to Y's emotional welfare, and further has the potential to undermine the parenting capacity of the mother;

(j) has criticised the children during phone calls, referring to them as lazy and criticising them for sitting down and drawing; and

(k) has little to no insight into his actions and their effect on others.

[87]

Ms L observed that the father had a limited understanding of the children's needs. Given all of the matters set out above in these reasons, I agree with that assessment.
The mother plainly has the capacity to meet the children's needs. She has been their primary carer since birth. They are, on the evidence healthy, settled and doing well at school. Ms L expressed no concerns for the children in the care of the mother. The mother has demonstrated these capacities, notwithstanding that Dr H described treating her for prolonged stress. Dr J assessed the mother as not having any mental health concerns except for anxiety in the relationship with the father and noted that she was capable of caring for the children independently without assistance in the future. I accept this evidence of Dr J.
The parents are not in communication currently. They do not, in my view, have the capacity to communicate effectively with each other in the future. The father openly denigrates the mother, called her a manipulator in open Court, and accuses her of playing the 'woman card'. The mother is fearful of the father given the behaviours to which she has been exposed. Both parents were not able to say anything positive about the parenting capacity of the other when questioned in the witness box. Dr J noted the need for the parties to undertake a parenting program with a focus on parents communicating effectively.
In the witness box, the mother told the Court that she completed an online post-separation parenting program. The mother confirmed that she receives ongoing support from an O Centre caseworker and has an assigned social worker from Women's Legal Service which she seeks regular support from. The father completed a 'Tuning Into Kids', a parenting program and a 'Men's Life Skills' program. The father was unable to tell the Court what, if anything, he had learned from the Men's Life Skills program. In cross-examination by the ICL, the father claimed that the Men's Life Skills program was the same course as the 'Men's Behaviour Change' program ordered by the Magistrates' Court of Victoria. No certificate of completion for the Men's Behaviour Change program was tendered into evidence and it remains unclear whether the father did in fact complete the program. I doubt that he did so given what has emerged before me.

[89]

The Court is required to assess the benefit to the child of having a relationship with the father where it is safe to do so.
The father currently has a very limited relationship with the children. He has not seen the children in person since February 2022 and has not spoken with them by phone since April 2023. The father's case is that his relationship with the children has been impeded because the mother does not want him to spend time with the children and because she hates him. He points to the various actions of the mother that have deprived him of seeing the children and being part of their lives, including her failure to return to Australia after her departure in June 2018, her taking the children to Country F in 2023, and her application for citizenship of Y.
I accept that the mother has taken various steps which have ensured that the children do not see their father or spend time with him. She left Australia in June 2018, she ceased communicating with him later that year, she only made the children available to him in February 2022 following court intervention in Country B, she ceased telephone contact between the father and the children in April 2023, she fled to Country F with the children, and she ultimately returned to Australia without informing the father. I am satisfied, however, that the mother took the steps she did because of family violence and controlling behaviours of the father to which she was subjected. I am satisfied that she took the steps she took because she was genuinely fearful of the father. Moreover, I am satisfied that the father has placed the mother in a position where she has had to continue to take steps to protect the children because the father's actions against her have been relentless and will not stop. If evidence is needed of this, one need look no further than the father's attempts to contact the children in a park in 2025 in contravention of court orders, and his relatively recent commencement of proceedings in the Federal Court. I am therefore satisfied the mother has acted protectively.
I accept the basic proposition that children benefit when both parents are involved in their lives. In his affidavit, the father says he has much to offer the children. He points to his working record in Australia, the professional employment he holds down and says that he can 'help instruct' the children about their new culture and environment and assist with their introduction into the community. I accept that, given the matters to which the father refers, he has the potential to be able to assist his children in Australia.
There are a number of matters, however, that need to be weighed against the potential benefit the father could bring to the children through the development of his relationship with them. These include the following:

[98]

(a) Dr K based his opinion in part on the basis that the father had 'no criminal priors and there is no police record prior to or since the alleged incidences of family violence which the examiner understands have not been corroborated or proven'. Dr K was not aware of the father's guilt in respect of the Unlawful Assault, Intentionally Damage Property, Contravening a Family Violence Safety Notice, Making a Threat to Kill and Threat to Inflict Serious Injury offences. Dr K was not aware the father was convicted of persistently contravening a Family Violence Order. Dr K was under the impression the father had not been found guilty of offences;

(b) Dr K in his report noted that the father had provided a detailed family history and that the information was cross validated with the medical history and 'during the course of interviewing all members'. Dr K accepted that he only interviewed the father, and the content of the report makes clear that Dr K placed some weight on the father's denial of the allegations of family violence. Dr K never met the mother nor sought information from her. Dr K did not meet any other family members despite indicating in his report that he had done so;

(c) Dr K states in his report that 'note was made of the entire known medical and legal history'. Dr K admitted that he had not seen the Child Impact Report prepared by Ms L, he had not seen the mother's affidavit, and he had not seen all of the orders of the Court. Dr K also admitted he was not aware of the court proceedings between the parties in Country B and Australia. He said he obtained all of his information from the father;

(d) Dr K noted in his report that 'there are no parenting arrangements in place between the children and the applicant father'. Dr K admitted he was not aware that the Court had made orders concerning parenting arrangements for the children on 8 July 2024; and

(e) In his affidavit, Dr K referred (appropriately) to Divisions 7.1.4, 7.1.5, and 7.1.6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). Curiously however, in the body of his report, Dr K states that he complied with the expectations and requirements in the 'PNVCAT2 - Expert Evidence practice guidelines and the County Court of Victoria Practice Note'. Why it was necessary to refer to the requirements in another court, or whether those requirements affected the content of the report Dr K prepared, is not clear.

[105]

The father is clearly an unacceptable risk to the children.
He has criticised them during phone calls. He refers to Y as 'M' despite knowing the child is distressed. He is pursuing proceedings into the granting of visas or citizenship to Y. He lacks control and shows no insight into his behaviour, and there is every reason to think these behaviours will continue. In the event he was to be reintroduced to the children, it is not certain how long he would be available to see them in person given his recent marriage in Country B. His parenting skills and abilities are untested. He has a limited understanding of the children's needs. He also holds extremely negative views of the mother and has treated her terribly. The children are at risk of emotional or psychological harm from him directly, and also indirectly, in the following way: his views, attitudes and behaviour toward the mother lead to a risk that the children, if exposed to him, could adopt his attitudes towards her, which would in turn have the effect of undermining her parenting. At the very least, exposure of the children to the father's views and attitudes could result in them being confused about their mother with the potential to lessen their attachment to her.
The father is also a risk to the children given the way he treats the mother. He has a history of family violence with Ms C and little insight into that behaviour. The attitudes and behaviours he displayed toward Ms C are present and have arisen and been on display in his relationship with the mother. So far as the mother is concerned, the father has sought to interfere with her visa status in the country. He has denigrated her and verbally abused her. He has withheld financial support from her. He continues to engage in a range of behaviours toward her to undermine her and instil fear in her. This includes openly denigrating her, attending at her home, approaching the children in a park in breach of Court orders, threatening her and commencing Federal Court proceedings against her. He shows no insight into his behaviours and there is every reason to think these behaviours will continue. By attacking the mother in the manner described and undermining her, there is a risk her capacity to care for the children will be compromised. I note that while Mr J assessed the mother as being able to continue to care for the children independently, that assessment was made at a time when the mother had no contact with the father. Plainly, Mr J's assessment is not valid in a situation where the father commences to have contact with either the children, the mother, or all of them.
The father contends that, to the extent there is risk, supervision is the salve that will cure the issue. I do not accept that proposition. Supervision of the father's time will not ease the mother's fears for the children, particularly in circumstances where the father continues to denigrate the mother, breach Court orders, and pursue proceedings against her. The children are likely to enter supervised time cognisant of her fears, confused, and in an environment of parental conflict. This will have an effect on the extent to which supervised time might be beneficial for them. Furthermore, during supervised time, the children may still become exposed to the father's attitude toward the mother. There is a real possibility of this occurring, given the father's openly expressed attitudes towards the mother. There is a real issue about the supervisor's ability to stop this. There is also a real risk that the father will continue to criticise the children and refer to Y as 'M' which causes Y distress. There is no evidence before me that there is any Language B speaking interpreter available that could monitor the father's behaviour to ensure that he did not denigrate the mother in Language B when speaking to the children and did not refer to Y as 'M'. Even if there was a Language B speaking supervisor available, the supervisor would only be stepping in once the denigration occurred or the father referred to Y as 'M'. By that stage, the damage to the children will have been done.
This being a final hearing, there is no mechanism to deal with any issues that might arise during supervised time. If an issue were to arise, it seems to me that the supervised time would need to cease. One consequence of that is that the parties could be back in litigation in this Court. That will likely affect the emotional welfare and stability of the mother and the children.
For all of the above reasons, it is in the best interests of the children that they spend no time with and do not communicate with their father.

[108]

The mother and the children have a connection to Australia. The mother is a permanent resident. The children are Australian citizens. The children have also commenced their education in this country.
There is evidence of the mother moving between Australia and Country B. Critically though, on each occasion, she has returned. Her evidence, in fact, was that she returned because the father's family is creating trouble for her in Country B, and she is safer here. She gave evidence that she intends to make Australia her home, and I accept that evidence. The mother's conduct and travel pattern does not behove a person who is a flight risk.
As stated previously, a feature of this case is that the children have spent a significant amount of time in their young lives in Country B. They have connections with extended family on the mother's side. Ms L noted in her report that it is likely the children would benefit from maintaining connection to their culture and extended family members in Country B. I agree.
There are also relevant practical and other considerations to take account of. The effect of the children being placed on the Airport Watch List is that the mother would not be permitted to remove them (or either of them) from Australia, without further order of this Court. Having regard to the history of these (and other) proceedings between the parties, there is cause to doubt that the father would consent to international travel, in which case the mother would be made to come back to this Court for another contest. It is a responsibility of this Court to make orders which will, to the extent possible, prevent the institution of further proceedings. I am not satisfied that placing the children on the Airport Watch List would achieve this outcome.
While the children are not to be placed on the Airport Watch List to enable them to travel overseas with their mother, an injunction should be issued against the father preventing him from removing the children from the Commonwealth of Australia. There is evidence before the Court of the threats from the father's family to remove the children from the mother. The mother has felt the need to flee to Country F in the past to avoid the children being taken by the father or his family. It is proper, just and convenient that an injunction issue against the father as proposed by the ICL. It is also in the children's best interest.
For all of the above reasons, an order should be made in the terms sought by the mother and the ICL. It is in the children's best interests. I decline to make any order placing the children on the Airport Watch List as sought by the father.

[110]

Given the matters to which I have referred above, orders will issue that the mother have sole decision-making responsibility about major long-term issues in relation to the children, that the children live with her and spend no time and have no communication with the father. Orders will also issue that the mother may obtain passports for the children without the consent of the father, and that she may travel with them. I will make proposed orders 1-6 of the proposed minute of orders submitted by the ICL and supported by the mother.
Given the conclusions set out in these reasons and the orders I have made earlier, I decline to make proposed orders 4-14 in the minute of orders that the father handed to the Court. Those proposed orders deal with matters ancillary to the decision-making and spend time orders sought by the father, as well as the Airport Watch List order sought by him. It is not in the children's best interest to make orders 4-14 of the father's proposed orders in circumstances where he will spend no time with children and will not be exercising any decision-making responsibility.
Both parties sought the imposition of restraints. This Court is empowered to make such order or grant such injunction as it considers appropriate for the welfare of the child and for the protection of a party to the marriage, and where it is just and convenient to do so.
The father's proposed restraint at proposed order 15 of the minute final orders sought by him is directed to both parties. I decline to make the order in the terms sought by the father. The evidence is insufficient to support the imposition of any restraint upon the mother. I was not addressed on the proposed restraint. Moreover, the restraint proposed appears inadequate to protect the mother from the type of behaviour that she has been exposed to by the father.
The mother proposed a more comprehensive set of restraints as set out in proposed orders 7 and 9 and 10 of the ICL's minute of proposed orders. Proposed order 7 is an injunction that the father not remove or attempt to remove the children from Australia. Proposed order 9 proposes a range of restraints on the father from, inter alia, harassing the mother and the children, threatening the mother and the children, approaching the mother, attempting to contact or approach the children, communicating with the children's school or childcare providers, attending school or childcare events, attending the children's extracurricular activities and attempting to remove the children from school or childcare. These restraints are only to operate upon the expiration of any family violence order. Proposed order 10 permits a police officer to arrest the father for breaching the injunctions in proposed order 9.
Given the findings I have made in these reasons about the father's conduct and his lack of insight, it is just, convenient and appropriate having regard to the welfare of the children to make the orders sought by the mother and the ICL as set out at proposed orders 9 and 10 of the ICL's proposed minute. I am satisfied it is necessary to make those orders for the personal protection of the mother and the children.
The mother sought an order that she be permitted to provide a copy of the Orders of this Court to any school, care or extracurricular provider and relevant government agencies. I agree it is in the best interest of the children for such order to be made. It is necessary to ensure the children's safety, given the father's previous disregard for court orders and his lack of insight.
I have stepped back to consider the suite of orders I propose to make in this matter. I am satisfied the orders are in the best interests of the children.

Khaleel & Berez (No 2) [2025] FedCFamC2F 1181 (29 August 2025)

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Judgment (112 paragraphs)

Legislation Cited (4)

Cases Cited (8)